2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-4-2011

Tysheem Crocker v. Edward Klem

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1112

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Tysheem Crocker v. Edward Klem" (2011). 2011 Decisions. Paper 261.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/261
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-1112

____________

TYSHEEM CROCKER,

 Appellant

v.

EDWARD KLEM; DISTRICT ATTORNEY

OF YORK COUNTY, PENNSYLVANIA

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-03-cv-01718)

District Judge: Honorable Thomas I. Vanaskie

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 23, 2011

Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.

(Filed: November 4, 2011)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Tysheem Crocker appeals from the District Court‟s denial of his petition for writ 

of habeas corpus. For the reasons stated below, we will affirm the District Court‟s order.
2

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

On October 5, 1997, two rival New York gangs, the Cream Team and the Gods, 

engaged in an altercation on Maple Street in York, Pennsylvania. Tysheem Crocker 

(“Crocker”) was the leader of the Cream Team, and his co-defendant Melvin Bethune 

(“Bethune”) was a member of the same. Kendu Smith (also known as “Do-Work”) was 

the leader of the Gods. After a physical altercation between Bethune and a member of 

the Gods, Crocker and Bethune drove to New York City to gather three other coconspirators, including “Corleone,” to retaliate against the Gods. They met up with 

Danny Steele (“Steele”), another member of the Cream Team, at a laundromat between 

Queen Street and Maple Street in York before proceeding to a Super 8 Motel to plan the 

assault. Crocker rented the motel room under the name Shondell Shamble.

According to Steele, who testified on behalf of the Commonwealth of 

Pennsylvania (“Pennsylvania”) at Crocker and Bethune‟s trial, the group discussed 

retaliating against Do-Work and anyone who was with him. The group then drove to 

retrieve guns that were stored in a house located on Maple Street and proceeded to the 

corner of Maple Street, where Do-Work was playing dice with a number of people, 

including Raymond Clark (“Clark”). Crocker confronted Do-Work and drew his 

machine gun, but when he attempted to fire his gun, the gun jammed. Immediately 
3

thereafter, one of the unnamed co-conspirators from New York discharged his firearm, 

which caused the remaining Cream Team members to open fire on the Gods and other 

people playing dice. Crocker and his co-conspirators chased after various individuals. 

Corleone, Steele, and an unnamed co-conspirator ran in Clark‟s direction. Corleone shot 

Clark twice and killed him.

Police officers conducted an investigation, focusing on Crocker, Steele, and 

Bethune. Steele pled guilty to conspiracy to commit murder in return for unspecified 

consideration by Pennsylvania. Corleone was never apprehended. On January 19, 1998, 

Crocker was arrested in New York, at which time he gave the name Shondell Shamble to 

the arresting officers. Crocker‟s case was consolidated with Bethune‟s case, and Steele 

testified on behalf of Pennsylvania at their trial. On January 15, 1999, Crocker was found 

guilty of first-degree murder and criminal conspiracy. He was sentenced to life 

imprisonment for the murder conviction and to a concurrent twenty-to-forty-year term of 

imprisonment for the criminal conspiracy conviction.

After his conviction and sentence were affirmed on direct appeal, Crocker filed a 

pro se Post Conviction Relief Act (PCRA) petition under 42 Pa. C.S.A. §§ 9541-9546. 

Counsel was appointed, and the petition was denied on March 2, 2001. Crocker‟s PCRA 

counsel failed to file a direct appeal, so Crocker was granted leave to file an appeal nunc 

pro tunc. But PCRA counsel still failed to file the appeal, so pursuant to a second PCRA 

petition filed by Crocker, new counsel was appointed. On August 15, 2001, a direct 

appeal was filed from the denial of his first PCRA petition but was denied. On May 15, 
4

2003, Crocker filed his third PCRA petition, which the PCRA court dismissed as 

untimely. In the meantime, Crocker timely filed a petition for writ of habeas corpus in 

the District Court on September 29, 2003. On May 11, 2004, the Superior Court of 

Pennsylvania affirmed the PCRA court‟s dismissal of Crocker‟s third PCRA petition. On 

May 24, 2004, the District Court stayed his habeas corpus petition to allow Crocker to 

exhaust state court review of his claims. On December 9, 2008, the District Court denied 

Crocker‟s petition for habeas corpus. Crocker timely appealed the District Court‟s order.

II.

The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331, 2241, 

and 2254. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253.

III.

A.

Crocker submits that trial counsel rendered ineffective assistance by failing to 

investigate the prosecution‟s contention that Crocker rented a Super 8 Motel room the 

night of the murder and used that room to plan the murder conspiracy. He argues that the 

District Court erred by not granting an evidentiary hearing regarding this claim in light of 

newly discovered evidence. We disagree. The District Court properly declined to 

address the merits because Crocker procedurally defaulted on this claim due to a state 

procedural bar.

All claims that a petitioner in state custody attempts to present to a federal court 

for habeas corpus review must have been fairly presented to the state court. See 28 
5

U.S.C. § 2254(b). Thus, with limited exceptions, “federal courts refrain from addressing 

the merits of any claim raised by a habeas petitioner that was not properly exhausted in 

state court.” Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing Coleman v. 

Thompson, 501 U.S. 722, 750 (1991)). Claims “deemed exhausted because of a state 

procedural bar are procedurally defaulted, and federal courts may not consider their 

merits unless the petitioner establishes cause and prejudice or a fundamental miscarriage 

of justice to excuse the default.” Id. at 160 (internal citations and quotations omitted).

Crocker raised this claim based on newly discovered evidence for the first time 

when he appealed the PCRA court‟s dismissal of his third PCRA petition to the 

Pennsylvania Superior Court. Under Pennsylvania law, “[i]ssues not raised in the lower 

court are waived and cannot be raised for the first time on appeal.” Pa. R. App. P. 302(a). 

Thus, the Pennsylvania Superior Court held that Crocker‟s ineffective assistance of 

counsel claim was waived on appeal because Crocker failed to raise it in his PCRA 

petition for the PCRA court to review. Pennsylvania v. Crocker, 855 A.2d 129 (Pa. 

Super. 2004). When a state law bars a petitioner from seeking further review of his 

claims in state court, the claims are procedurally defaulted. Lines, 208 F.3d at 160. 

Thus, we may not review this procedurally defaulted claim unless Crocker establishes 

cause and prejudice or a fundamental miscarriage of justice to excuse the default. Id. at 

159.

Crocker fails to show cause and prejudice to overcome this procedural default. To 

show “cause,” Crocker must demonstrate that “some objective factor external to [him] 
6

impeded [his] efforts to comply with the State‟s procedural rule.” Murray v. Carrier, 477 

U.S. 478, 479 (1986). Once he establishes cause, Crocker must then show prejudice that 

“worked to his actual and substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions.” Id. at 494 (emphasis and citation omitted). He argues that as 

soon as he was in possession of the newly discovered evidence, he properly filed a 

Motion to Remand in the Pennsylvania Superior Court, where the dismissal of his third 

PCRA petition was under review.

However, this is insufficient to establish that some objective external factor 

impeded him from raising this claim earlier in his PCRA petition. Crocker was aware 

that new evidence might surface regarding the timing of his motel check-in when he 

raised the issue in his first PCRA petition on September 14, 2000. A private 

investigator‟s letter to Crocker dated December 2, 2002, indicates that Crocker was 

pursuing information regarding the date and time he checked into the Super 8 Motel well 

before he filed his third PCRA petition on March 15, 2003. After Crocker‟s attorney 

filed a subpoena duces tecum to obtain the guest and employee records for October 5 and 

6, 1997, as well as a copy of the Super 8 Motel‟s check-in policy, Crocker received the 

pertinent information on May 16, 2003, one day after he filed his third PCRA petition. 

As Crocker asserts, “his initial PCRA proceedings, at which he was represented for the 

first time by counsel other than trial counsel, . . . presented the first opportunity for 

Crocker to raise his [ineffective assistance of trial counsel claim].” Yet Crocker fails to 

establish why he was unable to obtain the newly discovered evidence before filing his 
7

first or third PCRA petitions. His failure to show cause prevents us from considering his 

procedurally defaulted ineffective assistance of counsel claim.

Crocker also fails to establish a fundamental miscarriage of justice to excuse his 

procedural default. In order to show a fundamental miscarriage of justice, Crocker must 

show that “the constitutional violation has probably resulted in the conviction of one who 

is actually innocent,” such that “no reasonable juror would have convicted him in the 

light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Even if the new 

evidence were to prove that Crocker did not rent the motel room before the murder, it 

does not follow that he and his gang members did not meet and agree to a criminal 

objective prior to the murder. And even if Crocker did not register at the motel before the 

murder, other members of his gang could have registered at the motel and rented the 

room. Other corroborating evidence, including the fact that Crocker was armed, pointed 

his gun at Do-Work‟s head, and pulled the trigger (at which point the firing mechanism 

jammed), shows that the jury had sufficient evidence to convict Crocker regardless of 

when he rented the motel room. Given Crocker‟s failure to show a fundamental 

miscarriage of justice, we cannot consider his procedurally defaulted ineffective 

assistance of counsel claim.

B.

Crocker next asserts that the trial court‟s jury instruction on transferred intent 

violated his right to due process by permitting the jury to convict him of first-degree 

murder without finding beyond a reasonable doubt that Crocker had the specific intent to 
8

kill. The Due Process Clause of the Fourteenth Amendment “protects the accused against 

conviction except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). 

A “jury instruction that omits or materially misdescribes an essential element of an 

offense as defined by state law relieves the state of its obligation to prove facts 

constituting every element of an offense beyond a reasonable doubt, thereby violating the 

defendant‟s federal due process rights.” Smith v. Horn, 120 F.3d 400, 415 (3d Cir. 1997).

“It is well-settled that under Pennsylvania law a defendant cannot be convicted of 

first-degree murder as an accomplice „unless the Commonwealth proves that he harbored 

the specific intent to kill.‟” Goldblum v. Klem, 510 F.3d 204, 236 (3d Cir. 2007) (quoting 

Smith, 120 F.3d at 410). “Pursuant to the doctrine of transferred intent, the intent to 

murder may be transferred where the person actually killed is not the intended victim.” 

Pennsylvania v. Jones, 912 A.2d 268, 279 (Pa. 2006) (citing 18 Pa. Cons. Stat. Ann. 

§ 303(b)(1) (“intentionally or knowingly causing a particular result” can be found if “the 

actual result differs from that designed or contemplated . . . only in the respect that a 

different person . . . is injured or affected”)). When evaluating the jury instruction, “we 

focus initially on the language that is claimed to be erroneous, but we must view this 

portion of the instructions in the context of the charge as a whole.” Bronshtein v. Horn, 

404 F.3d 700, 710 (3d Cir. 2005) (internal citation and quotation omitted).

Crocker argues that the trial court erred in its jury instruction, allowing him to be 

convicted of first-degree murder even though he did not have the specific intent to kill. 
9

He submits that when co-conspirator Corleone shot and killed Clark, Corleone‟s intent 

was not transferred because Clark was not a potential target of the conspiracy. We reject 

Crocker‟s argument because the jury instruction as a whole was proper. After the trial 

court explained “[f]irst-degree murder is a murder in which the killer has the specific 

intent to kill,” it correctly stated that the jury must first consider the shooter‟s specific 

intent to kill based on either an agreement “to kill[] somebody” or the “conscious 

decision, I‟m going to shoot this person” at the scene of the murder. Then, the trial court 

stated that Crocker‟s specific intent to kill could be found if “the agreement was made at 

the motel to kill” or if at the murder scene he was an “accomplice . . . sharing that same 

intent” to kill somebody. It also accurately described the doctrine of transferred intent 

when it told the jury that “[i]f you intended to kill somebody and you fired shots and you 

end up causing somebody else‟s death, that specific intent that you had transfers over and 

applies to the person who was actually killed.” This instruction, taken together as a 

whole, indicates that Crocker could not have been convicted for first-degree murder 

without the specific intent to kill. Even if he did not agree or act as an accomplice to kill 

Clark specifically, he must have agreed or acted as an accomplice to kill someone, such 

that the specific intent could transfer to the actual victim, Clark.

Crocker contends that he should not be held responsible for Corleone‟s actions 

because Corleone was acting as a free agent and entirely separate from Crocker when he 

shot Clark, who lacked any relation to Do-Work or the Gods. The trial court addressed 

this by explicitly discussing the possibility that a passage of time or intervening events 
10

could lead to a conclusion that the murder was independent of the original conspiracy. It 

advised the jury to “look at the gap . . . how far was [the murder] removed in time, how 

far was it removed in distance, how far was it removed in terms of who participated, and 

do you find that to be a separate and distinct act from what happened back at the dice 

game” in order to determine whether Crocker was “part of an agreement of conspiracy in 

regard to the shooting” of Clark. The trial court‟s instruction sufficiently charged the 

jury to ensure that Crocker was not convicted if the jury was persuaded the murder was 

separate and independent from the conspiracy. Because the overall jury instruction was 

proper, the District Court did not err in denying Crocker‟s petition for habeas corpus.

IV.

For the foregoing reasons, we will affirm the District Court‟s order.